Religious discrimination: is the EHRC's intervention at the human rights Court misjudged?

Consultant editor Darren Newman sets out his view that the EHRC’s intervention in four religious discrimination cases - Eweida, Chaplin, Ladele and McFarlane - currently before the European Court of Human Rights is ill thought out.

There are few more sensitive areas of employment law than religion and belief discrimination. While there are relatively few such cases brought before the employment tribunals, they attract a disproportionate amount of publicity and are easily hijacked by interest groups pursuing an agenda of their own.

Four prominent cases have now been brought together in two separate claims before the European Court of Human Rights: Eweida & Chaplin v United Kingdom (application numbers 48420/10 and 59842/10) and Ladele & McFarlane v United Kingdom (application numbers 51671/10 and 36516/10). Eweida v British Airways and Chaplin v Royal Devon & Exeter NHS Foundation Trust were both cases on the visible wearing of a cross in the workplace. Ladele v London Borough of Islington and McFarlane v Relate Avon Ltd were about Christians in roles that required them to provide their services to same-sex couples on an equal basis.

At issue in these cases is art.9 of the European Convention on Human Rights. This guarantees freedom of thought, conscience and religion, and provides that “freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”.

This divides neatly into two issues. The first is whether or not the claimants’ freedom to manifest their religious beliefs has been interfered with. The second is whether or not any interference that there has been is justified under the “democratic society” test.

These are very different questions from those before the tribunals and courts when these cases were being fought in the UK. Each case was ultimately about indirect discrimination - whether or not the employer had applied a provision, criterion or practice that placed people with the beliefs of the claimant at a substantial disadvantage. In three of the cases, the court held that a provision, criterion or practice had been established, and the issue was then whether or not that was justified as a “proportionate means of achieving a legitimate aim”. In each case it was held that it was and the claim failed.

Eweida is the odd one out, because here it was not found that there was any disproportionate impact on persons sharing the claimant’s religious belief. This was at least in part because of the way in which she put her case, insisting that British Airways’ uniform policy adversely affected Christians in general, rather than the small number of Christians who wanted to wear a cross that was visible to others. Whatever the rights and wrongs of that point, however, the Court of Appeal still held that, if the requisite level of disadvantage had been found, British Airways’ policy would have been found to be justifiable.

In all four cases, the claimants are arguing that their art.9 rights have been breached. This point was actually considered in each case by the UK courts, but was held to be of little merit. The fact is that the European Court of Human Rights has been reluctant to find that workplace requirements that conflict with a religious belief amount to an interference with someone’s right to manifest his or her belief. It seems unlikely that these cases will ultimately succeed - but you never know, and I will watch for their outcome with interest.

However, an added level of controversy has been contributed by the decision of the Equality and Human Rights Commission (EHRC) to intervene in the cases in order to make representations directly to the European Court of Human Rights. This in itself would not have attracted a great deal of comment, were it not for the way in which the EHRC chose to announce its intervention.

A press release issued on 11 July 2011 (on the EHRC website) opened with the assertion that “judges have interpreted the law too narrowly in religion or belief discrimination claims”. It went on to say that the “courts have set the bar too high” and that “rulings already made by UK and European courts have created a body of confusing and contradictory case law”.

These are, frankly, ill-considered words. They have inevitably been seized on by those with a particular agenda to push, and led to accusations that the EHRC is taking sides in a highly contentious debate. My objection to these comments, however, is that they are just wrong.

Take the point about contradictory case law. In fact, the case law around religious discrimination has shown a remarkable level of consistency. I simply cannot think of two cases that contradict one another. In attempting to give an example, the press release says “some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer” - but that is not a contradiction in the case law! The fact that some compromises have been reached is nothing to do with the courts. Besides, you would expect that, in terms of which symbols can be worn in which workplaces, the results of cases will differ from one workplace to the next, depending on the nature of the business and the employer’s reason for imposing the rule.

What matters is that the courts are consistent in saying that a rule about the wearing of religious dress or jewellery is capable of amounting to indirect discrimination unless the employer can show that the rule is a “proportionate means of achieving a legitimate aim”. That is as clear as the law gets in this sort of area, and I’m not sure what more we can realistically ask of the courts.

The EHRC also suggested in the press release that it would propose the idea of “reasonable accommodations” that will “help employers and others manage how they allow people to manifest their religion or belief”. However, it is difficult to see much practical difference between a duty to make a reasonable accommodation and the current rules on justification in indirect discrimination. This is simply not a properly thought out proposal.

The rather robust approach of the press release now seems to have been superseded by a consultation document published by the Commission (Legal intervention on religion or belief rights: seeking your views (Microsoft Word format, 56K) (on the EHRC website)). This takes a markedly different tone and the “reasonable accommodation” suggestion is no longer to be put before the Court. Gone also are the criticisms of the current case law. Instead we have a much more measured statement: “Our intervention will be as an expert and independent body and not in support of any parties in this litigation. The Commission’s role in intervening is to give its expert opinion on the appropriate application of the law.”

The consultation document then goes on to ask potential respondents for their views on whether or not the UK tribunals and courts “applied the correct principles” in Eweida and Chaplin and applied the “justification test” correctly in Ladele and McFarlane.

Am I the only one to find it odd that the EHRC explains that it will give the European Court of Human Rights the benefit of its independent expertise, and then puts out a general question asking us all to express our opinions on the cases in issue?

Despite appearances, however, the EHRC clearly does have an opinion of its own because the consultation document says that it is intervening in Eweida and Chaplin on the basis that the courts “may not have given sufficient weight to [art.9(2)] of the Convention” and in Ladele and McFarlane on the basis that “the domestic courts came to the correct conclusions”.

In other words, in these last two cases, the EHRC is actually supporting the decision reached by the UK courts. No one reading the original press release could possibly have guessed that this was the EHRC’s view. If it had said this at the outset, it would have been spared a great deal of critical comment.

There are still problems, however. One unsatisfactory aspect of the consultation is that the EHRC fails to draw a clear distinction between art.9 of the European Convention and the test for indirect discrimination under the Equality Act 2010. In Ladele and McFarlane, it was accepted that the employees had been subjected to a “provision, criterion or practice” that put people who shared their religious beliefs at a particular disadvantage. In each case, it was then decided that the employer had met the justification test, so there was no discrimination. The EHRC’s consultation document says that, in these cases, “interference with [the individuals’] right to manifest their religious belief was established”, but this is simply wrong. Disadvantage for the purposes of discrimination law is not the same as an interference with the right to manifest a belief under human rights law. In each case, the court heard argument about art.9 but held that there was little assistance to be gained from the issue. They categorically did not rule that there had been an interference with the freedom to manifest a religious belief. It seems that the basis for the consultation is simply mistaken.

Ladele and McFarlane are more controversial because they are concerned with an employee’s right to opt out of providing services to same-sex couples. This is a much clearer case than Eweida and Chaplin of religious expression potentially interfering with the rights and freedoms of others. Nevertheless, all four cases were basically decided on the same legal principles of indirect discrimination and the “proportionate means of achieving a legitimate aim” test.

It comes down to this. Does the EHRC accept that rules on behaviour or dress in the workplace that adversely affect particular religious groups should be capable of being justified as a “proportionate means of achieving a legitimate aim”? If the answer is yes, then what specific objection does it have to the outcome in these cases? If the answer is no, then what principles should be applied? It is bizarre that a careful reading of the EHRC’s comments gives no indication of its view on these basic points.

Of course, applying the justification test in practice is difficult (and not just in cases involving religious belief). We could really benefit from some practical guidance from the EHRC on how employers should deal with issues of religious expression in the workplace. I’m sure that this would do more to clarify the issues and genuinely help those struggling to deal with them than this rather ill-thought-out intervention in the European Court of Human Rights.

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